02/21/2017

The Language of the Lame Duck Pardon AmendmentMike Rappaport

A short while ago, I wrote a post advocating that we amend the Constitution to eliminate lame duck pardons. While such a reform might seem small, it would be beneficial, it might secure the bipartisan support necessary to enact an amendment, and it would revive the moribund amendment process which is necessary to a beneficial originalism.

But having an idea about what an amendment should do and writing the language of that amendment are two different things. Stephen Sachs, an originalist from Duke Law School, saw the post and tried his hand at drafting an amendment. Steve has both more taste and more talent for this task than I do.

Consider the language he came up with:

The power to grant reprieves and pardons for offenses against the United States may not be exercised unless the President shall have made a public proclamation of the same; nor, except to stay the execution of a sentence of death, from one month prior to the day for choosing the electors until noon on the 20th day of January next following, unless after the counting of the electors’ votes the President shall have been chosen to continue in office.

The language following the semicolon basically says that the President cannot pardon anyone for a month before Election Day until Inauguration Day unless he is reelected. The first sentence prohibits secret pardons, which might be used to circumvent the restriction on lame duck pardons. Without that prohibition, the President might issue secret pardons before the period beginning one month prior to election day.

Of course, some might believe that a prohibition on secret pardons was problematic, since perhaps they could be used for legitimate purposes. I am not convinced, but if one disagrees, one could address the issue in another way – say by changing the amendment to allow the next President to repeal any secret pardons issued by the prior President.

I like this language. This could be the 28th Amendment. All we need is two thirds of both houses and three quarters of the states.